Opposition — Jago v. Van Curen

. ‘ ~

’ ' RECEIVED

JUN 12 1981

OFFICE OF THE CLERK

SUPREME COURT, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

Case No. 80-1942

A. R. JAGO, et al.,

Petitioners,

vs.

GEORGE D. VAN CUREN,

Respondent.

On Petition for Writ of Certiorar1

to the United States Court of Appeals

for the Sixth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

LOUIS A. JACOBS

Counsel of Record

Clinical Programs

DAVID E. FREEL

Supervising Attorney

Clinical Programs

College of Law

The Ohio State University

1659 North High Street

Columbus, Ohio 43210

(614) 422-6821

COUNSEL FOR RESPONDENT

QUESTIONS PRESENTED

1. WHETHER A STATE PRACTICE OF RESCINDING PAROLE ONLY UPON A FINDING OF

EITHER INTERIM MISCONDUCT OR INABILITY TO IMPLEMENT A RELEASE PLAN

CREATES AN INTEREST PROTECTED BY THE DUE PROCESS CLAUSE.

2. WHETHER AN INMATE'S PETITION FOR HABEAS CORPUS RELIEF FROM A DECISION

RESCINDING PAROLE WITHOUT DUE PROCESS IS RENDERED MOOT BY HIS

PLACEMENT ON CONDITIONAL PAROLE DURING APPELLATE REVIEW.

TABLE OF CONTENTS

PIPETTE 6) 8 65s 6 i 66 6 s’0 co 6 cee 6 8'e iii

DMO s «be 6b ecesesseoseceeecers 3}

ARGUMENT IN OPPOSITION TO GRANTING CERTIORARI. ........ 3

CONCLUSION . 2. 2 eo wv eee hie sb 6 es 4 we 6 ek 6 8 8 8 » 7

41

TABLE OF AUTHORITIES

Sases Page(s)

Arsberry v. Sielaff, 586 F.2d 37, 46 (7th Cir. 1978)......... 3

Cofone v. Manson, 594 F.2d 934, 939 (2d Cir. 1979) ........44. 3

Connecticut Bd. of Pardons v. Dumschat, No. 79-1997 (U.S., orally

argued Feb. 20, 1980)... +. + . Se oe

Greenholtz v. Nebraska Inmates, 442 U.S. 1, 11 (1979) ......... 4

Hutton v. Heggie, 454 F.Supp. 870, 873 (D. Col. 1978) ......... 5, 6

Jones v. Cunningham, 371 U.S. 236, 252 (1963)... 1 ee eee eee 5,6

Mitchell v. Hicks, 614 F.2d 1016, 1019 (5th Cir. 1980)........ 3

Morrissey v. Brewer, 408 U.S. 471, 479 (1972)... 2. ee ee eevee 4, 6

Perry v. Sindermann, 408 U.S. 593, 601 (1972) ......-22ee0ee 3

Peyton v. Rowe, 391 U.S. 54 (1968)....... ep oe oe ae 6

Southern Pacific Terminal Co. v. I.C.C., 299 U.S. 498 (1911)...... 6

Weinstein v. Bradford, 423 U.S. 147 (1975)... 2 ee ee ee ee ee 5,6

iii

STATEMENT OF THE CASE

To correct factual inaccuracies and omissions in the Petition, this

brief presentation is submitted pursuant to Sup. Ct. R. 34(2).

Ohio grants parole by setting an "on or after" date for release from

inearceration and then leaving to a field investigator responsibility for

developing an approved parole plan and evtablishing the actual release

date (Kowalski Dep. at 43; Coomer Dep. at 22-24).* The time needed for

investigation varies from a few weeks to several months (Shoemaker Dep. at

31, Coomer Dep. at 42), and the "on or after" date is the earliest possible

date and applicable to pro forma situations (Shoemaker Dep. at 14-15, 51-53;

Griffith Dep. at 10; Snyder Dep. at 81).

After his parole interview, Mr. Van Curen was given a half-sheet

form that stated:

You have been paroled; effective, on or after

April 23, 1974, when arranged: by the Division

of Parole.

(A-24),.*#* Outside the interview room, a sign read "If you made parole,

report to the parole officer," which Mr. Van Curen did. On a posted list

headed "Results of the April 17, 1974 Parole Board," Mr. Van Curen was listed under

the heading, "POA [parole on or after] April 23, 1974" (A-25). On April

17, 1974, Mr. Van Curen signed, and the Institutional Parole Officer counter-

signed as a witness, a "Statement of Parole Agreement" (A-26). The statement

began:

The Members of the Parole Board have agreed that you

have earned the opportunity of parole and eventually

a final release from your present conviction. The

Parole Board is therefore ordering a Parole Release

in your case.

(A-26). According to a pamphlet distributed to each incoming prisoner, entitled

"You and the Review Process," the answer to the hypothetical question of "If I

have a successful review and the Board grants me a parole, how long before I

* "Dep." refers to depositions filed in the Supreme Court of Ohio and used

throughout the lower federal proceedings.

** "A" refers to the Joint appendix filed July 14, 1980, in the Sixth

Circuit.

am released?" is "within 30 to 60 days" (A-31).

Mr. Van Curen then attended and completed pre-release classes (Coomer

Dep. at 19; Snyder Dep. at 38). He was taken to the prison tailor and

measured for a civilian suit of clothes (Coomer Dep. at 17-18, 66-67;

Snyder Dep. at 38). The Institutional Parole Officer sent Mr. Van Curen's

proposed parole plan to the field investigator (Coomer Dep. at 16-17, 48-50).

Prior to actual release, a parole may be rescinded as "the result of

something that occurred between the original parole hearing and subsequent

hearing" (Shoemaker Dep. at 65). The practice in Ohio is to rescind

parole for institutional misconduct or a problem with developing the parole

plan (Coomer Dep. at 32-33, 43-44). Less than one percent of paroles are

rescinded annually in Ohio (Snyder Dep. at 73-74; 112-13; Shoemaker Dep. at 14).

Six days after its parole grant, the Board summarily rescinded Mr. Van

Curen's parole due to "information that technical matters pertaining to this

case should be more fully explored" (A-27). No field investigator's report

had been or was ever submitted on the proposed parole plan (Coomer Dep. at

22-24). Mr. Van Curen had not engaged in any improper institutional conduct

during the six days (Snyder Dep. at 14).

Prior to the rescission, a deluge of newspaper and broadcast journalists

had inquired about the parole grant (Snyder Dep. at 32), and the board chair-

man related to the other board members that the "community climate appeared

to be very hostile to the Board's decision" (Shoemaker Dep. at 27). Adverse

publicity was contained in the parole board's file, and one factor in granting

parole is the public's reaction: "(I]f the Parole Board gets out of step with

public opinion, the future of the Parole Board will be quite hazardous" (Snyder

Dep. at 86).

The two grounds for rescission on which the parole authorities now rely

involved factual discrepancies. Mr. Van Curen supposedly misrepresented

whether six or one million dollars had been embezzled; though, the record is

clear that the total loss was over a million dollars (Snyder Dep. at 51,

Kowalski Dep. at 57). Mr. Van Curen also listed as a half-brother under whom he

would live withhis former lover; however, he had submitted a new and recognized

place of residence to the Institutional Parole Officer, which the Officer

accepted (Coomer Dep. at 38-39). Mr. Van Curen's family treated the former

lover as a half-brother and their relationship was known to Cleveland

authorities (Van Curen Dep. at 59). That listing was encouraged by both

a prison priest and pscyhologist who advised him to retain the half-brother

label to avoid sexual harassment within the institution prior to his grant

of parole (Van Curen Dep. at 70-72).

ARGUMENT IN OPPOSITION TO GRANTING CERTIORARI

1. The Sixth Circuit Followed Controlling Precedent From This Court.

Three legal principles have been established by this Court to govern the

due process ramifications at bar. First, a state's custom or practice may

create a protectable interest notwithstanding the absence of an express

statutory provision. Second, a prisoner's claim must surpass the mere

desire implicit to a parole system and amount instead to a justifiable

expectation of parole. Third, the parole decision at issue must be one for

which due process is viable; consequently, a retrospective factual deliberation

must be done with notice and an opportunity to be heard while a purely

subjective prediction may be done summarily. Each of these principles are

clearly satisfied in this case.

A. State Custom or Practice May Create A Protectable Interest.

The argument petitioner makes concerning Ohio's statutory parole frame-

work is off the constitutional mark because due process interests may be

created by state custom or practice. Perry v. Sindermann, 408 U.S. 593, 601,

(1972). Where a state establishes "rules or mutually explicit understandings,"

Perry, 408 U.S. at 601, regarding a benefit, a due process interest can be

created even absent statutory expression.

The federal courts are not in conflict on this issue. See, e.g., Mitchell

v. Hicks, 614 F.2d 1016, 1019 (5th Cir. 1980); Cofone v. Manson, 594 F.2d

934, 939 (2d Cir. 1979); Arsberry v. Sielaff, 586 F.2d 37, 46 (7th Cir. 1978).

Ohio has created precisely such an interest through both its nearly

unvariable practice of effectuating parole grants and its use of rescission

only for cause. The state has buttressed that practice through its parole

agreement, pamphlet, and process, all of which combine here to produce a

mutually explicit and undeniable understanding.

B. Mr. Van Curen Had Been Granted A Benefit He Could Justifiably

Anticipate Receiving.

The facts demonstrate that Mr. Van Curen did not just desire parole in

the same undifferentiated way all prisoners do. He did not expect parole

simply because a parole system implicitly holds out that prospect. Thus,

unlike Greenholtz v.Nebraska Inmates, 442 U.S. 1, 11 (1979), Mr. Van Curen

had "more than the mere hope that the benefit will be obtained," he had

documents countersigned by the authorities, official minutes, and a half-sheet,

and completion of the process from the tailor's measurements to pre-release

classes, needed to implement a parole grant.

His expectation for parole was, therefore, rooted in Ohio's representations

and actions. He had attained a status that Ohio held out as a special one to

. be given only to deserving inmates. See "You and The Review Process," A-28-32.

Mr. Van Curen could justifiably rely on the documentation, interviews, and

efforts undertaken by him and the authorities to implement the parole grant.

This case differs, therefore, from Connecticut Bd. of Pardons v. Dumschat,

No. 79-1997 (U.S., orally argued Feb. 24, 1980), which raised the issue of

whether the existence of statistically frequent accelerations of parole

operates to create a protected interest. Here, an individual granted a status

asks only that it not be taken away without at least some notice and an

opportunity to be heard. In Dumschat, the argue raised in Greenholtz is

renewed: whether mere existence of a system creates a protected interest for

all inmates.

C. The Decision To Rescind Parole Is Factually Retrospective, In

Contrast To The Decision To Grant Parole, And Is Thus Amenable

To Due Process.

Two separate decisions were made by the Ohio parole board. First, it

summarily rescinded on April 23, 1974, Mr. Van Curen's parole. Then, at

a later and different hearing, it decided on June 20, 1974, not to grant

parole. (Petition at 5-6.)

The decision to deny parole "is necessarily subjective in part and

predictive in part" with "very broad discretion in the Board." Greenholtz,

442 U.S. at 13. But, the decision to rescind parole in Ohio “involves a

wholly retrospective factual question: whether the parolee has in fact acted

in violation of “institution rules or failed to present a proper release

plan." Morrissey v. Brewer, 408 U.S. 471, 479 (1972).

However amenable to due process the totally discretionary exercise of

granting power may be, the exercise of rescinding power is too intrisically

based on an intervening occurrence or information to be totally

discretionary. Ohio must provide the process that is due once it grants parole.

2. Conditional Parole Represents A Restraint By Government That Is Subject

To Habeas Corpus Relief.

At oral argument on this matter before the Sixth Circuit Court of

Appeals, the Court was informed that Mr. Van Curen was conditionally released

on parole. (Petitioner's Appendix, 6A). Petitioner then and before this

Court asserts that Van Curen's case is therefore moot due solely to respondent's

parole status relying upon this Court's decision in Weinstein v. Bradford,

423 U.S. 147 (1975). The Sixth Circuit replied to petitioner's argument stating:

(T]he fact which created mootness [in Weinstein v.

Bradford] was not the inmate's release. Rather, the

case became moct when this status 'ripened into a

complete release from supervision...' Id. at 148.

Since Van Curen remains under the supervision of the

OAPA the present case is not controlled by

Weinstein. We conclude that mootness has not been

established and that the important constitutional

issue presented by this appeal should be decided at

this time. (Petitioner's Appendix, 6A).

The Court of Appeals again considered petitioner's assertion of mootness in

denying petitioner's request for rehearing en banc. (Petitioner's Appendix,

17A).

Mr. Van Curen has not met the threshold requirement of a final unconditional

release from parole that this Court found in Weinstein made it "plain that

respondent can have no interest in the procedures followed by petitioners

in granting parole." Weinstein, 423 U.S. at 148. Respondent Van Curen's

interest in petitioner's parole procedure is a consuming one, he presently

lives under the daily supervision of the State of Ohio, a supervision

continually reinforced by the significant and special restraints placed

upon his liberty while on parole. (Respondent's Affidavit In Support of

Request To Proceed in Forma Pauperis).

In Jones v. Cunningham, 371 U.S. 236, 252 (1963), this Court recognized

the significant effect parole conditions placed upon one's liberty in

finding that parole did moot a petition for a writ of habeas corpus. In

ruling a parolee's habeas action not to be moot against the exact question

of mootness the petitioner here presents, the United States District Court

in Hutton v. Heggie, 454 F.Supp. 870, 873 (D.Col. 1978), found the Jones

oi

court's explanation of the rationale historically inherent in,the habeas

writ to be persuasive:

Of course, that writ always could and still can

reach behind prison walls and iron bars. But

it can do more. It is not now and never has been

a static, narrow, formalistic remedy; its scope

has grown to achieve its grand purpose--the pro-

tection of individuals against erosion of their

right to be free from wrongful restraints upon

their liberty.

Jones, 371 U.S. at 243.

Petitioner's reliance upon the "issue capable of repetion, yet evading

review" test first enunciated by this Court in Southern Pacific Terminal Co.

v. I.C.C., 299 U.S. 498 (1911), is therefore misplaced. Respondent's personal

stake in the outcome of this action was clearly recognized by the Court in

Jones, supra, and is not comparable to the factual setting present in Wein-

stein, supra. Respondent Van Curen's ongoing personal stake in his due

process challenge to the State of Ohio which the Sixth Circuit has confronted

is ‘further evidenced by this Court's recognition that 35-45% of all paroles

are revoked. Morrissey v. Brewer, 408 U.S. 471, 479 (1972).

In petitioner's final assertion of mootness, petitioner states "Van Curen

has obtained his relief." (Petition, 11). Respondent Van Curen can never

gain all the relief entitled him. A due process hearing in 1974 may have

resulted in Van Curen's release on parole six years before his ultimate

parole date.

The relief Mr. Van Curen is entitled to on a writ of habeas corpus in

these circumstances is immediate release from parole. Hutton, 454 F.Supp. at

875. Federal courts have the "power to fashion appropriate relief other than

immediate release" from incarceration upon a habeas corpus petition. Peyton

v. Rowe, 391 U.S. 54, 67 (1968). Petitioners request that this Court find

Van Curen's case moot thereby implicitly suggests that all the state of Ohio

need do in future habeas challenges to the parole system is wait until the last

stage of appeal before ordering parole for the habeas inmate and thereby success-

fully evade review. Based upon the importance of the issue and fairness to the

respondent, mootness is highly improper to invoke. Recognizing the ultimate

importance of the decision for the State of Ohio, petitioner requested a stay

of the Sixth Circuit decision pending this Court's decision. (Petitioner's

Appendix 16 A). The effect of that stay was to block the very relief sought:

release from the restraint of conditional parole.

CONCLUSION

Rescission of parole under the circumstances at bar constitutes the

deprivation of a benefit that the state had provided. There is no conflict

in the federal courts and no departure from this Court's precedent in the

Sixth Circuit's holding that Ohio has adopted a custom and practice of

rescinding parole only for cause. Mr. Van Curen had progressed beyond the

level of other prisoners, he had even been measured for his civilian suit.

Consequently, “2 had a right to some notice and opportunity to be heard.

Were the Sixth Circuit affirmed and the stay lifted, Mr. Van Curen would

immediately seek release from parole. That release is the appropriate remedy

under habeas corpus in the situation presented by this case. Far from

being moot, that release is one in which Mr. Van Curen has an ongoing personal

stake: he wants to have and should be provided unconditional liberty.

For these and the foregoing reasons, the petition should be denied.

. Respectfully submitted,

Member of Supreme Bar

Counsel of Record

Clinical Programs

Seal

Supervising Attorney

Clinical Programs

The Ohio State University

College of Law

1659 North High Street

Columbus, Ohio 43210

(614) 422-6821

COUNSEL FOR RESPONDENT

yy wire RECEIVED

SUPREME COURT OF THE UNITED STATES

JUN 12 1981)

OFFICE OF THE CLERK

SUPREME COURT, U.S.

October Term, 1980

Case No. 80-1942

A. R. JAGO, et al.,

Petitioners,

vs.

GEORGE D. VAN CUREN,

Respondent .

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

RESPONDENT'S MOTION TO PROCEED IN FORMA PAUPERIS

Respondent George D. Van Curen, by and through his attorneys, moves this

Court, pursuant to Sup. Ct. R. 46(1), for leave to proceed in forma pauperis

for the reasons stated in the attached affidavit. Respondent sought and was

granted leave to so proceed in the federal appellate and district courts

below, in this Court in Misc. No. 78-5419, and in the Supreme Court of Ohio.

Respectfully submitted,

ou A. JACOBSY

Counsel of Record

Clinical Programs

Dud ©. Dasa

DAVID E. FREEL

Supervising Attorney

Clinical

College of Law

The Ohio State University

1659 North High Street

» Columbus, Ohio 43210

(614) 422-6821

COUNSEL FOR RESPONDENT

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

Case No. 80-1942

A. R. JACO, et al.,

Petitioners,

vs.

GEORGE D. VAN CUREN,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

RESPONDENT'S AFFIDAVIT IN SUPPORT

OF MOTION TO PROCEED IN FORMA PAUPERIS

STATE OF OHIO

COUNTY OF CUYAHOGA, SS:

I, George D. Van Curen, being first duly sworn according to law,

depose and say, in support of my motion for leave to proceed without

being required to pay costs or fees:

1. I am the respondent in the above-captioned case.

2. I amon parole upon a two-year term until April 11, 1982,

even though in Ohio the term for parole upon convictions for others

than homicide is generally one year, under the following conditions:

(a) a written travel permit is required for out-of-state or

more than 24 hours away trips and for visits back to the prison

(permission has been denied for one such trip), which permit

local law enforcement authorities must check-off on at the

destination;

(b) permission mst be given to change residence or jobs;

(c) no checking account, according to the District Supervisor

of the Ohio Adult Parole Authority may be maintained;

(d) a monthly visit to my parole office for an interview and

report must be made; and

(e) any misconduct during this term may lead to revocation.

3. I have no substantial assets and a savings account with only

Five Dollars ($5.00) in it that must be maintained so that I can cash

my paycheck.

4, I ama cleaner full-time at Lakewood High School and take

home approximately One Hundred Fifty Dollars ($150) a week.

5. I had an offer of an out-of-state job for a higher salary

but did not apply to the Parole Authority for permission because the

job involved working on films the Authority would surely find morally

objectionable.

6. I have been unable to find a higher paid job that the

Authority would deem suitable.

7. For my job I must have a car and owe the credit union

Fifteen Hundred Dollars ($1,500) on it.

8. I pay a monthly rental of Two Hundred Dollars ($200) for an

apartment.

9. I am responsible for my own support and pay for gasoline,

food, insurance, clothing, and other necessities.

10. The United States Treasury Department has a Nine Hundred

Eighty One Thousand Dollars ($981,000) tax lien on me and took my

refund check this year in partial payment.

11. Because of my financial situation, I am unable to pay the

costs or fees for pursuing this case.

12. I am unable to post security either.

13. I believe I am entitled to the redress approved by the

Sixth Circuit because parole authorities should not be allowed to

take back in summary fashion a parole release date I justifiably relied

on using, particularly when their action was taken based on facts that

I could have cleared up given the chance to be heard.

PaO Pe

Sworn to and subscribed before me this | Ith aay of June, 1981.

ous Oh feokn

LOUIS A. JACOBS, Attorney Atle

PUBLIC — STATE OF OHIO

f ¥ no expiration dete,

Section 147.03 KC,

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

Case No. 80-1942

A. R. JAGO, et al.,

Petitioners,

vs.

GEORGE D. VAN CUREN,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Motion to Proceed In

Forma Pauperis and Affidavit in Support has been deposited in a United States

Postal Service mailbox, in an envelope with first-class postage prepaid,

addressed to Dennis L. Sipe, Counsel of Record for Petitioner, Assistant

Attorney General, State Office Tower, 26th Floor, 30 East Broad Street,

Columbus, Ohio, 43215, this Ith, of June, 1981. I further certify that

all parties required to be served have been served by mailing that copy to

douuis, & pret

Counsel of Record

their counsel as indicated above.